Companies now use ephemeral messaging as an authorized communication tool to advance legitimate business objectives. With automated deletion of message content and end-to-end encryption, ephemeral messaging apps like Wickr and Signal offer a secure communication platform that may facilitate compliance with data protection and privacy laws. Nevertheless, companies must exercise caution when using ephemeral messaging, particularly when litigation is pending or reasonably anticipated.

This is confirmed by Federal Trade Commission v. Noland, (D. Ariz. Aug. 30, 2021), where the court issued an adverse inference to address defendants’ loss of relevant electronically stored information arising from their use of Signal. As Noland makes clear, parties that use ephemeral messaging after a duty to preserve attaches may face severe sanctions for the loss of relevant information. Just as significantly, Noland implicitly provides insights on how companies can properly use ephemeral messaging to satisfy business imperatives.

Federal Trade Commission v. Noland